ALLSTATE MORTGAGE CORPORATION OF FLORIDA, PETITIONER,
v.
SHIRLEY STRASSER ET AL., RESPONDENTS
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The court held that under Fla.Stat. § 45.031(1) as amended, a property owner's right of redemption extends until the sale is confirmed by the court, not just until the public sale occurs.
[1] A statutory amendment in derogation of common law must be strictly construed and will not be interpreted to displace common law further than is clearly necessary.
[2] The common law right of redemption in foreclosure actions prevails until the sale is confirmed by the trial court, absent clear legislative intent to the contrary.
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Join FLexlaw to unlock all legal intelligenceFollowing a foreclosure judgment, property was sold at public auction. The owner then redeemed the property by paying the bid amount plus costs before…
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McCAIN, Justice.
This cause is before us to review the decision of the Third District Court of Appeal reported at 277 So. 2d 843, which was certified to us as passing upon a question of great public interest, recited by that Court to be :
“[W]hether Fla.Stat. § 45.031 as amended by chapter 71-5, Laws of Florida 1971, eliminates the right of redemption from foreclosure judgments after the date of the public sale up to the date the sale is completed by the order confirming sale.”
We have jurisdiction pursuant to Art. V, § 3(b)(3), Constitution of Florida, F.S.A., and Rule 4.6, F.A.R., 32 F.S.A. The record reveals that the respondent, Shirley Strasser, was the owner of certain real property located in Dade County, Florida. On March 16, 1972, however, Inca International Corporation filed a complaint against the respondent for the foreclosure of a mechanic’s lien against the property.
On April 12, 1972, a default judgment was entered against the respondent and on April 27, 1972, the Circuit Court of the Eleventh Judicial Circuit entered its final judgment, ordering, among other things, that the property in question be publicly sold. Pursuant to Chapter 45, Florida Statutes, notice of the sale was given on May 4, 1972, and on May 15, 1972, the property was sold to the petitioner, Allstate Mortgage Corporation. The following day the Clerk of the Circuit Court issued a certificate of sale.
On May 23, 1972, however, the Court ordered that the Clerk accept the respondent’s payment in redemption. The following day the respondent paid to the Clerk the amount which the petitioner had bid and paid for the property plus costs and a certificate of redemption was issued.
From the order of redemption issued by the Circuit Court, the petitioner appealed to the Third District Court of Appeal. The District Court affirmed, basing its decision upon its interpretation of Fla.Stat. § 45.031(1), F.S.A., as amended by Chapter 71-5, Laws of Florida 1971. Fla.Stat. § 45.031(1), F.S.A., (1969) provided, in pertinent part:
“In any order of final judgment the court shall direct the clerk to sell the property at public sale on a specified day, which shall be not less than ten or more than thirty days after the date thereof, on terms and conditions specified in the order of judgment. . . .”
The 1971 amendment added the following pertinent language:
“In cases when a person has an equity of redemption, the court shall not specify a time for the redemption, but the person may redeem the property at any time before the sale,” (Emphasis added.)
In reaching its decision, the District Court points out that prior to the amendment, the statute did not expressly mention redemption but that the courts had held that there was an inherent right of redemption evolving from the common law which could be exercised at any time prior to entry of an order confirming a sale.
Turning to the amendment, the District Court found:
“§ 45.031(1), Fla.Stat. as now amended is clearly in derogation of the common law and must be strictly construed. However, it will not be interpreted to displace the common law further than is clearly necessary. Bryan v. Landis, 106 Fla. 19, 142 So. 650. The courts will infer such a statute was not intended to make any alteration other than was specified and plainly pronounced in clear unequivocal terms. Ex parte Amos, 93 Fla. 5, 112 So. 289; Bryan v. Landis, supra; Hialeah v. State, 136 Fla. 498, 183 So. 745, 6 Fla.Jur., Common & Civil Law § 8. Inasmuch as that portion of the statute pertaining to time of redemption does not clearly change the common law right of redemption up until confirmation of the sale, we must hold the common law rule prevails. Furthermore, in enacting this statute, the Legislature failed to define or indicate the intended meaning of the word ‘sale’. Therefore, it is necessary that we do so.
“Webster defines ‘sale’ as ‘a contract whereby the absolute or general ownership of property is transferred from one person to another for a price or sum of money, or, loosely, for any consideration.’
“A sale has similarly been defined in Edwards v. Baldwin Piano Company, 79 Fla. 143, 83 So. 915; Mathews v. Holloway, 83 Fla. 30, 90 So. 924; State v. Livingston, 159 Fla. 63, 30 So. 2d 740. In accordance therewith, a judicial sale has been held not to be final and complete until, confirmed by the trial court. Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995. Inasmuch as the Legislature is presumed to know the meanings of words and rules of grammar [State ex rel. Hanbury v. Tunnicliffe, 98 Fla. 731, 124 So. 279], we hereby find that the Legislature intended to adopt the recognized meaning of the word ‘sale’ and that the sale did not take place until ownership of the property was transferred. Said transfer takes place according to § 45.031(3), Fla.Stat., ten days after the day of the sale, upon no objections being filed thereto and issuance of the certificate of title.” 1
After oral argument and upon consideration of the petition, the briefs and the record, we conclude that the District Court has correctly interpreted Fla.Stat. § 45.-031(1), F.S.A. (1971). Accordingly, the decision of the District Court is affirmed and the question certified to us by the District Court is answered negatively.
It is so ordered.
Affirmed.
CARLTON, C. J., and ADKINS, BOYD and DEKLE, JJ., concur. . 277 So. 2d at 845.
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Citator
Cited By (22 total)
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Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)…citing Hartford Accident and Indemnity Company v. Smith, 366 So. 2d 456 (Fla. 4th DCA 1978); Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d 362 (Fla.1977); Allstate Mortgage Company v. Strasser, 277 So. 2d 843 (Fla. 3rd DCA 1973), aff'd 286 So. 2d 201 (Fla. 1975). Finally, the carrier maintains that the elimination of Section 440.34(1), Florida Statutes (1978), providing for assessment of attorney’s fees against the employer or carrier “if the claimant proves to the judge that the employer or ca…
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Eyal Emanuel v. Bankers Tr. Co., N.A., 655 So. 2d 247 (Fla. 3d DCA 1995)…point in time when a mortgagor’s right of redemption from foreclosure judgment is extinguished. Prior to the adoption of this statute, the time in which the mortgagor might redeem was set forth and contained in Allstate Mortgage Corp. v. Strasser, 286 So. 2d 201 (Fla. 1973), which succinctly stated the rule at page 202 thereof as follows: [TJhere was an inherent right of redemption evolving from the common law which could be exercised at any time prior to the entry of an order confirming a sale. All cases…
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Ahmad Saidi v. Wasko, 687 So. 2d 10 (Fla. 5th DCA 1996)…CA 1991). Former section 45.031 and current section 45.0315, which govern the right of redemption are in derogation of common law, and should be strictly construed. Allstate Mortgage Corp. of Fla. v. Strasser, 277 So. 2d 843 (Fla. 3d DCA), affirmed, 286 So. 2d 201 (Fla.1973). Pursuant to former section 45.031, a mortgagor could exercise the right of redemption any time before the issuance of the certificate of title. Current section 45.0315 provides: At any time before the later of the filing of a certifica…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ex Parte: Ernest Amos, 93 Fla. 5 (Fla. 1927)
- Hardy Bryan v. Cary D. Landis, 106 Fla. 19 (Fla. 1932)
- State v. Tunnicliffe, 98 Fla. 731 (Fla. 1929)
- Edwards v. The Baldwin Piano Co., 79 Fla. 143 (Fla. 1920)
- Macfarlane v. Macfarlane, 50 Fla. 570 (Fla. 1905)
- Allstate Mortg. Corp. OF Fla. & Inca Int'l Corp. v. Strasser, 277 So. 2d 843 (Fla. 3d DCA 1973)
- City of Hialeah v. State, 136 Fla. 498 (Fla. 1938)
- State v. Livingston, 159 Fla. 63 (Fla. 1947)
- Mathews v. Holloway, 83 Fla. 30 (Fla. 1922)